In India, before 1970s the judiciary in the first two decades after independence exercised a greater degree of judicial restraint than seen later. It was continuous unconstitutional actions of the other two pillars, namely the legislature and the executive, which lead to the formation of various theories in constitutional law by the courts in India, particularly the Supreme Court, to limit the powers of the legislatures and executives by creating exceptions to the rule of separation of power.

The problem of drawing a line between judicial and legislative power is always strenuous in any legal system. While exercising the power to review legislative actions there may be a threat of judiciary exceeding its limits and there may also be a scenario wherein the judiciary may become so subservient to the legislative will so as to render nugatory the safeguards enshrined under various provisions of the Constitution. 

Even after more than 70 years of the successful working of the Indian Constitution the peace among two extreme positions requires some more efforts. Therefore, instead of arriving at a hurried conclusion of judicial review and policy consideration, it will be more appropriate to consider the constitutional history of judicial review in India.

The foundation of this problem was laid down from the very beginning in the year 1951 with the enactment of the First Amendment Act. The First Amendment Act was introduced within a year and half of working of the Constitution of India. The main object behind this amendment was to nullify certain judicial decisions and forestall future judicial action. 

The Courts have never shied away from asserting authoritatively that in case of grave constitutional violation by the Legislature, the Courts are well within their powers to intervene and declare such act to be invalid. Way back in the year 1950 itself, the Supreme Court in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, held that

“The inclusion of Article 13(1) and (2) in the Constitution appears to be a matter of abundant caution. Even in their absence, if any of the fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid.”

Thereafter, in State of Madras v. V.G. Row, AIR 1952 SC 196, the Court pointed out that they are not out to seek clashes with the legislature of the country. The relevant para reads as under:

“……. our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts undercover of the widely interpreted “due process” clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the “fundamental rights “, as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country.”

In Sankari Prasad Singh Deo v. Union of India and State of Bihar, AIR 1951 SC 455 wherein the First Amendment Act which sought to introduce Article 31A and 31B in the Constitution was challenged, the Court after scrutinizing the nature of amending power held that it is well within the power of the Parliament to amend the Constitution provided the procedural safeguards in Art 368 are duly fulfilled. 

In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, the Hon’ble Supreme Court, clearly expressed its concern as regards nature and scope of amending power as to whether this power to amend is plenary or is it to be governed in terms of the provisions of the Constitution which safeguards individual liberties of an individual. 

The concern for individual liberties as expressed in Sajjan Singh’s Case found a place in Golaknath v. State of Punjab, AIR 1967 SC 1643, wherein the Court concluded that power to amend is not an absolute power and fundamental rights were unamendable. It seems the judgment was highly influenced by the instances of misuse of amending power in the seventeen years of working of the Indian Constitution.

In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 the Court though overruled Golaknath v. State of Punjab, AIR 1967 SC 1643 but held that the Parliament could not abrogate the basic features of the Constitution while amending it. 

The interesting aspect of the above development, which needs mentioning is that the Supreme Court which was not ready to impose any limitation on amending power, except procedural comes down in handy to impose a substantive limitation on the power of the Parliament to amend the Constitution. What forced the Hon’ble Court to change its view so radically? Was it mere intention to usurp the power or they were forced to come to the rescue of the liberties of the individual. 

This basic structure doctrine, which was introduced in Kesavananda Bharati Case, has been extended now to include rule of law, separation of powers, equality, democracy, the supremacy of the Constitution, judicial independence and judicial review, the relationship between Art 14, 19 and 21, harmony between fundamental rights and directive principles. 

The sum and substance are that this doctrine is now at the discretion of the Courts.  

In E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, the Hon’ble Supreme Court, explaining the scope of executive power and concept of equality stated:

“Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.”

In State of Rajasthan v. Union of India, AIR 1977 SC 1361, the Court held that

“The guiding principles…should be the welfare of the people at large and the intention to strengthen and preserve the Constitution….Clause (5) of Article 356 of the Constitution does not imply a free licence to the Central Government to give any advice to the President and get an order passed on reasons which are wholly irrelevant or extraneous or which have absolutely no nexus with the passing of the Order. To this extent the judicial review remains.”

In Kehar Singh’s case, (1989) 1 SCC 204, the Supreme Court maintained that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram’s case, AIR 1980 SC 2147 wherein it was cited that,

“It is the pride of our constitutional order that all power, whatever its source, must, in its exercise, anathematise arbitrariness and obey and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. From this angle even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of presidential power.”

However, in Swaran Singh v. State of U.P, (1998) 4 SCC 75, the Supreme Court invalidated the remission of sentence by the Governor because some material facts were not brought to the knowledge of the Governor. 

Similarly, in Epuru Sudhakar v. Govt of A.P., AIR 2006 SC 3385 the Court, reaffirming Maru Ram’s case, AIR 1980 SC 2147, held that the considerations to be taken into account while granting pardons should be relevant and not arbitrary or capricious.

This highlights the extension of limited judicial review even in cases of pardoning power. These cases are illustrations of compulsive judicial intervention warranted by the fact that there were cases wherein pardon was granted based on mere political vendetta.

Such illustration where the situation forced the Court to take a stance against Legislature is not just confined to amending power or pardoning power.

The Court in S.R Bommai v. Union of India, AIR 1994 SC 1918 established judicial review in cases falling within the purview of Art 356, the Court held that

“…President cannot exercise this power under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature…if there be no basis or justification for the order under the Constitution, the Courts will have to perform their duty cast on them under the Constitution. While doing so, they will not be entering in the political arena…”

In Raja Ram Pal v. The Hon’ble Speaker Lok Sabha & Ors., (2007) 3 SCC 184 the Court duly extended the power of judicial review to a matter relating to parliamentary privileges:

“it should be a matter of presumption, that Parliament would always perform its functions and exercise its powers in a reasonable manner. But, at the same time there is no scope for a general rule that the exercise of powers by the legislature is not amenable to judicial review. This is neither the letter nor the spirit of our Constitution. We find no reason not to accept that the scope for judicial review in matters concerning Parliamentary proceedings is limited and restricted…”

Furthermore, it was pointed out that “…in case of gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited…”

In the case of delegated legislation, in which essential legislative function cannot be delegated, it is established that if such legislations are in contravention to the parent act, the resultant is ultra vires the parent act.

The Indian Supreme Court in Union of India v. Tarachand Gupta & Bros., AIR 1971 SC 1558 also affirmed the judgement passed by the House of Lords in Anisminic Corporation v. Foreign Compensation Commissioner, [1969] 2 A.C. 147 wherein it was held that in cases where there is an apparent error of exercise of jurisdiction by inferior tribunal the Court’s jurisdiction is never expelled out.

In B.R Kapur v. State of Tamil Nadu, [2001] 7 SCC 231 however the Court initially refrained from entering into the political thicket, still went further and added that if such question relates to a constitutional interpretation, the Court will decide the issue irrespective of the fact that answer to such question will have a political impact.

In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 the Court expressed discontent to the contention of the respondent that the Courts cannot enter into policy question. 

The more activist approach by the courts can be seen in cases relating to environmental matters, starting from Rural Litigation and Entitlement Kendra v. State of U.P AIR 1985 SC 652 down the line till Indian Council for Enviro-Legal Action v. Union of India AIR 1996 SC 1446, the Supreme Court has taken a stern approach as regards failure on the part of the State and lack of seriousness concerning the implementation of environmental laws. The decisions include suggestions as regards establishment of green benches, determination of the appropriate amount of compensation when it comes to environmental degradation, issuing suggestions as regards steps to be taken in pursuance of protection of the environment, being critical of the government for being negligent and being party to nuisance created by a corporation, creation of commissions to receive assistance and records at particular intervals as regards steps being taken for environmental reclamation, afforestation and soil conservation programme.

Though in A.K. Gopalan v. State of Madras, AIR 1950 SC 27 the phrase “procedure established by law” was interpreted to mean “procedure prescribed by the law of the state”, however, in Maneka Gandhi v. Union of India, AIR 1978 SC 597, the same phrase was interpreted to mean the due process of law which means a procedure which is right, just and fair.

Another phrase in Art 21 which attracts attention is an interpretation of the phrase “right to life and liberty”, the increasing ambit of Art 21 where is justified in terms of Court’s duty to take into account the socio-economic development in the society at the same time is criticized based on judiciary being unwarranted under the Constitution to bring in these kinds of interpretation and thereby increasing the limitation on the power of the State where none exists in the express terms.

The judgment of the Supreme Court in Vishaka v. State of Rajasthan, AIR 1997 SC 3011 wherein the Court laid down certain guidelines with regards to sexual harassment of women in workplaces in absence of legislation, however, invited a lot of criticism on the ground that the Court has assumed a legislative role, such instances, however, should not be looked into devoid the fact that should justice be left at the backdoor when the Legislature fails to act on the duty which has cast upon it. 

In other words, even though it is the legislature which enjoys the representation of the people and they are the best judge to decide what interests are to be protected or what are the fields in which proper legislations are required, but in a case where the legislature fails to fulfil the duty cast upon it by the Constitution, an individual cannot be denied justice merely for this reason. It is in such a scenario, that the judges, who sit to adjudicate, are also required to do justice to an individual. 

Justice, social, economic and political, is guaranteed by the Constitution, and where the other organs of the State have failed to deliver it, the judges cannot turn a blind eye, on the pretext that policymaking is not the job of the Courts. If they do so they would be violating their oath of office.

There are many more judgments by the Supreme Court but even those judgments will bring us to the conclusion that every case is unique in itself. Based on decisions above-mentioned, one can easily understand that a decision should not be analysed in isolation. There are instances whereby judiciary ought to have interfered and they did interfere to secure to all its citizens: Justice, social, economic and political.

The separation of powers is complemented and supplemented by checks and balances, and therefore the organs of the State, though separate, act as a brake on each other.


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Ajay Awasthi is a practising advocate at the Chambers of Shri Mahesh Jethmalani. He is is skilled in Constitutional Law, International Law, Legal Assistance, Criminal Law, and Arbitration. Before joining the Chambers of Shri Mahesh Jethmalani, Mr. Awasthi has worked with Late Shri Ram Jethmalani and has handled several high profile cases. Mr. Awasthi is an alumnus of KIIT Law School, Bhubaneswar. 

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